The Future of Redistricting
The U.S. Supreme Court will decide the case of Moore v. Harper during its 2022-2023 term. The petitioners are Republican leaders of North Carolina's General Assembly, who are challenging the state supreme court's decision to declare a map of congressional districts drawn by the legislature in 2021 an unconstitutional partisan gerrymander. A central feature of their argument is the "independent state legislature" (ISL) theory, which has been elevated from obscure legal doctrine to a topic widely discussed in Washington and the popular press.
The theory is controversial, to say the least. It focuses on language in Articles I and II of the U.S. Constitution that charges "each State" and "the Legislature thereof" to conduct the elections for federal office (meaning the president and both houses of Congress). As a result, ISL theory asserts, congressional redistricting plans and presidential electors approved by state legislatures or extant state law should not be subject to review by state courts.
Opponents, mainly Democrats and progressives, have mobilized heavy artillery in response. In late July the House Committee on Administration, chaired by Democratic representative Zoe Lofgren of California, held a hearing with witnesses recruited from Democratic legal ranks warning of ISL theory's potential to wreck American democracy. Law firms like the Elias Law Group and policy outfits like the Brennan Center for Justice are sounding the alarm. The New York Times, the Washington Post, and NPR have all criticized the doctrine.
Much of the critique of ISL theory stems from its foundations in Article II and the presidential selection process — and the consequent fear that Republicans across the country are scheming to undermine American democracy by, among other things, justifying the objective of the violence on January 6th and relitigating the 2020 election. Former federal judge J. Michael Luttig referenced these criticisms when he claimed ISL theory was a central feature of the GOP's "blueprint to steal the 2024 election" through manipulation of the Electoral College. Though not a direct retort to ISL theory, bills amending the Electoral Count Act are being seriously considered in Congress — the House passed one of them in September 2022 — as a way to remove any opportunity for state legislators and election administrators to influence presidential electors after the public has voted.
Other critics of ISL theory are more concerned about its origins in Article I and its implications for redistricting. The theory asserts that state courts should not have jurisdiction over maps drawn for congressional elections; only federal courts should have the authority to review them. Redistricting has second billing in the debate over ISL theory, and this makes some sense — protecting the integrity of elections is of vital importance. Nevertheless, it would be unwise to neglect what the theory has to say about the process of redistricting and who controls it. Nothing less than the traditional model of American redistricting — in which state legislatures composed of the people's representatives, not partisan activists and courts, craft district maps — is at stake.
THE CASE OF NORTH CAROLINA
Legal battles in the state of North Carolina have propelled ISL theory into the national debate over redistricting. When one considers the history of redistricting in North Carolina and its unique state constitution, this is not especially surprising.
Most states have long treated redistricting as regular legislation passed by majorities in both legislative bodies and subject to gubernatorial veto. Over the past 20 years, however, several states have revised their constitutions and begun using bipartisan independent or legislative commissions to craft and approve maps. California, Iowa, and New Jersey have done this for some time; Arizona, Colorado, and Virginia have adopted such procedures more recently. Some states, like Florida, Louisiana, and Oregon, provide a formal role for judges. In states like Connecticut and Illinois, failure to promulgate maps prior to a deadline triggers the work of a back-up commission.
Today, North Carolina is the only state where the legislature draws both the congressional and state maps unassisted and approves them by simple majorities. These maps are drawn by joint resolution in the General Assembly. The state constitutional provision that authorizes this process provides no formal role for any commission, court, or even the governor. In fact, in 1996, when Republicans lawmakers introduced a constitutional amendment to give the state's chief executive a legislative veto, many Democrats only agreed to support the measure on the condition that redistricting was exempted. Republicans granted the exemption, ensuring that the amendment gained the three-fifths majority necessary to pass the General Assembly. North Carolinians later approved the amendment through a referendum by a margin of three to one.
Since the mid-1960s, North Carolina's legislative and congressional maps have been the subject of numerous legal cases at the state and federal levels. Between that decade and the 1980s, the state was involved in widespread litigation efforts surrounding malapportionment in the South and the requirement that each district within a state's legislative or congressional plan have equal populations. From then until about 2010, the fights focused more on race, concentrating initially on multi-member state legislative districts before shifting, at least for the 1990 cycle, to the congressional majority-minority districts mandated by the 1982 amendments to the federal Voting Rights Act.
Race remained an important redistricting issue through the 2010s. But after 2008, when Barack Obama became the first Democratic presidential candidate to win the state since Jimmy Carter, the controversies took on a more partisan bent. Liberal groups, which had become increasingly unsatisfied with the results of courts' tests for the manipulation of African American votes, decided to go in a different direction, and began pushing arguments about the unconstitutional nature of partisan redistricting. In 2016, North Carolina's left-of-center political network followed suit by challenging the state's congressional and state-legislative redistricting plans as unfairly crafted to entrench the Republican Party's power. State and federal judges ruled in their favor.
The North Carolina legislative leadership eventually dropped its appeal of the ruling on the state plan, deciding instead to comply with the court order by using a lottery to choose between prospective maps drawn up by an expert witness for their opponents. But Republican leaders appealed the congressional-map decision to the U.S. Supreme Court. In 2019, a majority of justices effectively sided with them in Rucho v. Common Cause. Writing for the majority, Chief Justice John Roberts held that the Court could not intervene because redistricting was an inherently political matter and functional tests of illegal partisan bias in the practice did not exist.
Given these controversies, it was all but inevitable that the congressional and state maps produced following the 2020 census would also come under scrutiny. And in fact, with the assistance of a legion of non-profits, lawyers, and academic experts, North Carolina's Democratic Party apparatus marshalled a group of interested voters and helped them challenge the maps in state court — again on partisan grounds.
The trial court upheld the maps. Echoing Chief Justice Roberts in Rucho, it held that "the partisan-gerrymandering claims present a political issue beyond [the court's] reach." But on appeal last February in the consolidated cases of NC League of Conservation Voters v. Hall (challenging the state legislative map) and Harper v. Hall (challenging the congressional map), the North Carolina Supreme Court reversed, finding not only that partisan-gerrymandering claims are justiciable, but that both maps were unconstitutional. Drawing an analogy to a 2018 decision by the Pennsylvania Supreme Court in League of Women Voters of Pennsylvania v. Commonwealth, the North Carolina Supreme Court asserted that the partisan nature of the plans violated three principles of the state constitution: the guarantee of "free elections," the protection of "freedom of speech" and "freedom of assembly," and the guarantee of "equal protection of the laws."
Regarding the first principle, the court held that partisan gerrymandering infringes on voters' fundamental right to "substantially equal voting power" as established by the state constitution's free-elections clause. Such practices, it asserted, "prevent elections from reflecting the will of the people impartially and by diminishing or diluting voting power on the basis of partisan affiliation."
This characterization of free elections would strike political scientists as peculiar. For them, the phrase "free elections" brings to mind characteristics such as whether candidates have access to the media and sources of funding, whether eligible members of the public can vote easily without undue pressure or intimidation, whether ballots are cast in secret, and whether the vote count is transparent, timely, and accurate. It also infers meaningful choice, which hinges on such matters as ballot-access and candidate-filing rules, the number of candidates on the ballot, and the availability of useful information about each candidate. None of this touches on the "power" of a given vote, much less whether that power is equivalent among voters.
What's more, in the American context, various other elements integral to the concept of free elections are routinely limited by law. These primarily consist of matters related to voter access and election integrity, including registration and voter-identification requirements, mail-in and early voting rules, and the location and number of polling places. To establish a violation of the free-elections clause, the court would need to explain why partisan gerrymandering deserves to be singled out as uniquely unjust — something it failed to do in this case.
A second principle invoked by the North Carolina Supreme Court was the state constitution's Article I protection of freedom of speech and assembly. The court (perhaps drawing inspiration from Justice Anthony Kennedy's concurrence in the U.S. Supreme Court decision Vieth v. Jubelirer) asserted that redistricting plans developed with partisan bias unconstitutionally punish individuals for their party affiliation and voting history.
Setting aside the evidentiary issue of establishing viewpoint discrimination in an election regime rooted in the secret ballot (registering with a party is generally transparent but independent of voting), state law treats citizens who wish to organize or vote for certain parties and candidates unfavorably all the time — particularly those who support third parties or independent candidates. Laws shaping the campaign-finance system and restricting access to the ballot are the most important examples. The only independent candidate to appear on a North Carolina ballot statewide was Ross Perot in 1992; more recently, the state's Democratic Party has fought tooth and nail to keep the Green Party off the ballot entirely.
Again, when analyzing legal restrictions on political speech and assembly, political scientists rarely focus on redistricting. Instead, they look at matters such as campaign-finance laws; candidate-nomination procedures; rules regulating canvassing, rallies, and protests; media entities' compliance with the federal requirement that they provide equal time to any opposing candidates who request it; and so on. Shoehorning what amounts to an equal-protection rationale into one grounded in political speech is thus a clumsy way of attempting to justify the ruling.
The court did invoke North Carolina's equal-protection clause, found in Article I, Section 19 of the state constitution, as a third provision violated by the maps, but its reasoning was still less than convincing. As the court explained:
[W]hen on the basis of partisanship the General Assembly enacts a districting plan that diminishes or dilutes a voter's opportunity to aggregate with likeminded voters to elect a governing majority...the General Assembly unconstitutionally infringes upon that voter's fundamental rights to vote on equal terms and to substantially equal voting power.
Yet regardless of the composition of the district maps, each citizen has one vote to elect one legislator who has one vote in the General Assembly or the U.S. Congress. Given that the state legislature must establish districts with equal or nearly equal populations, the choice among legislative candidates is the same for all voters in a district. Litigants concerned about how district plans affect the equality of voting rights might instead be advised to direct their efforts at the U.S. Supreme Court's ruling in Evenwel v. Abbott, which holds that states must conform to the settled practice of drawing their districts with equal population, not equal numbers of eligible voters.
The North Carolina Supreme Court also ruled in the challengers' favor despite the state constitution making no explicit mention of what maps should look like. Other state constitutions do. Florida's constitution, for example, asserts that "[n]o apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party"; Missouri's that "[d]istricts shall be drawn in a manner that achieves...partisan fairness"; Ohio's that "[n]o general assembly district plan shall be drawn primarily to favor or disfavor a political party"; and Arizona's that "[t]o the extent practicable, competitive districts should be favored where to do so would create no significant detriment to" criteria deemed important by existing federal and state law. The people of North Carolina have always had the opportunity to amend their constitution and establish rules that prohibit the use of partisan considerations in redistricting; they have never done so.
The General Assembly, confounded by the decision, was unable to design a remedial congressional map that passed muster, forcing a three-judge panel to order three "special masters" to put a plan together. Lawmakers had more luck with revising the state house and senate maps, but for reasons that remain obscure. The judicial panel approved those maps, asserting that any partisan skew was now largely a function of political geography and not unconstitutional gerrymandering. It offered no operational standard to justify its decision, however, leaving future lawmakers in the dark on how they might craft plans that will satisfy judges if challenged.
To be sure, the North Carolina Supreme Court's decision did not impinge on the legislature's ability to generate district plans exclusively. It mandated an outcome, not a process. But the ruling was so expansive and ambiguous that aggrieved political parties, disappointed candidates, and angry voters — of which there are always plenty — now have an incentive to challenge future maps in court. The ruling thus effectively inserted judges into the redistricting process by inviting them to veto and possibly redraw district plans. Many are likely to embrace this new role.
In August 2022, North Carolina's Supreme Court upped the ante. Agreeing with a trial court, it asserted that two of the state's constitutional amendments, one instituting photo-identification requirements for voting and the other a cap on the state income-tax rate, were plausibly illegitimate. The court reasoned that because the General Assembly that proposed them in 2018 had been elected using illegally gerrymandered district plans — the maps were declared unconstitutional by a state superior court in Common Cause v. Lewis — the legislature lacked the authority to initiate the referendum process, even though a decisive majority of the state's voters subsequently approved the amendments.
Again, this ruling did not formally erode the state legislature's monopoly on redistricting, but it did elevate the stakes. Any individual or group who believes it was disadvantaged by a legislative map now has more incentive to involve the courts; after all, success means not only a new map, but a possible invalidation of any laws enacted under the original, offending version.
REDISTRICTING AND THE COURTS
The legal disputes surrounding the North Carolina Supreme Court's recent decisions are now before the U.S. Supreme Court in Moore v. Harper, and the outcome of that case will have important implications for ISL theory — the claim that state courts should not be able to review redistricting plans and presidential electors approved by state legislatures.
At the national level, redistricting has mostly been ignored; so far, ISL theory has been interpreted as a dangerous justification for Republicans to overthrow the 2024 presidential election. According to this scenario, state legislatures could ignore popular vote counts or ratify vote totals manipulated by election administrators, secretaries of state, or other rogue actors. Officials could switch slates of electors, and state courts would be powerless to do anything in response. There may be proponents of ISL theory who fantasize about this, and it is certainly a chilling thought. Congress is considering measures to avoid such a destabilizing outcome — as it very well should.
It would be a mistake, however, to overlook the fact that ISL theory also raises important questions about redistricting — congressional redistricting in particular. The practice invokes a federal question, and federal courts will continue to review it. Indeed, congressional redistricting is particularly national in character today. The primary concern of the coastal and D.C. attorneys who descend on state capitals to litigate cases is not voting rights, but the partisan composition of a state's congressional delegation and how it contributes to control of the U.S. House. In our era of slim majorities, the shift of a few seats here and there is crucial to the direction of federal policy.
Proponents of ISL theory are rightly concerned about political usurpation by increasingly activist state courts. North Carolina's Supreme Court appears no less partisan an institution than its legislature, with candidates nominated by parties and running in elections on party labels. Its justices have as much personal interest in congressional campaigns and elections as do state legislators: In 2020, three of the Democratic nominees for the U.S. House from North Carolina had been judges; two of them had sat on the state's supreme court.
U.S. Supreme Court precedent originally favored the argument that redistricting was not justiciable; any effort to adjudicate it, according to this thinking, constituted a dangerous digression into what Justice Felix Frankfurter called a "political thicket." This reasoning collapsed in the early 1960s, however, with the Court's ruling in Baker v. Carr.
The question back then was race; today, it's partisanship. Despite Chief Justice Roberts's admonition in Rucho, the pivot to partisanship in redistricting cases has led judges back into dense political brush, and there is not much prospect of escaping. The sweeping and tortured logic that the North Carolina Supreme Court used to justify judicial intervention has no limit. Having courts assume control of redistricting is hardly a victory for democracy.
THE PIVOT TO PARTISANSHIP
The original gerrymander is attributed to the Democratic-Republican Party in Massachusetts, whose members, supervised by Governor Elbridge Gerry, drew a state legislative-district plan to increase the chances of their reelection following the 1810 census. Since then, parties out of power have complained that the legislative majority abuses its power and manipulates the redistricting process for partisan ends. Griping rarely led to litigation until recently, however, (with the exception of legal challenges involving race). Before the 2010s, the minority party generally soldiered on, recognizing a need to alter policy positions and strategically recruit and finance moderate, talented candidates if they were to win seats. It helped that the parties were ideologically flexible and committed to finding individuals suited to the districts they were running in.
Parties also found ways to compromise on redistricting. In Ohio after the 2000 census, the out party's tacit acceptance of new maps was bought by drawing favorable districts for many of its powerful incumbents. In some instances, the aggrieved party reformed the redistricting process entirely. California Republicans led by Governor Arnold Schwarzenegger — with help from disaffected Democrats and good-government groups — mobilized voters and won referenda in 2008 and 2010 to strip redistricting powers away from the legislature and give them to the new California Citizens Redistricting Commission. This transformation was engineered using a process laid out clearly in the state's constitution.
For the most part, this is no longer the case. Today's suits challenging district plans as unlawful partisan gerrymanders are concocted, funded, and brought by partisans driven by the desire to maximize their party's seat share in a legislative body. The organizations behind these litigants believe the courts can force states to adopt district plans that, in the ensuing decade, might add to their total of congressional seats and provide them with a real opportunity to take control of the state legislature. They are uninterested in winning power the old-fashioned way — by studying districts and nominating candidates with local appeal.
The litigants in redistricting cases are also uninterested in genuine constitutional reform. If they were, they would take seriously efforts to make elections free and equal. They would fight for a truly democratic process — one in which voters can choose between many candidates from several parties on the ballot. They would also energetically commit to transforming the redistricting process, not just litigating the maps it produces.
In North Carolina, legislators from both parties have introduced and co-sponsored bills to amend the state constitution and reform the redistricting process by creating an independent, bipartisan commission. But they have done so only when they are in the minority, and even then their efforts have been half-hearted. Candidates — cognizant of the public's limited interest in the issue and the fact that it would create uncertainty for their own reelection efforts — are unwilling to make redistricting reform an important part of their personal campaigns for office.
The state Democratic Party platform only began to advocate a constitutional change to incorporate a redistricting commission in 2016 — largely after the party decided that the legislative majorities it lost in 2010 would not be restored before the 2020 round of map drawing. Democratic and Republican views on the issue, at least in the state legislature, are thus driven by circumstance, not principle. Lawmakers in both parties enjoy their constitutional authority to assemble state legislative and congressional maps; they just don't like being in the minority when the maps are being drawn.
ISL theory could be used to justify many things, but the debate surrounding it has overlooked its potential to save the American model of redistricting.
After several decades of reform, legislatures have largely lost their traditional authority to draw state and congressional district maps. In several states, the public has initiated the transformation, amending constitutions to establish redistricting commissions and other procedures limiting the power of their legislatures. In others, where political activists recruit assistance from outside groups of attorneys, the agents of change have been the courts. To obtain the maps they want, or at least ones they can live with, litigants demand extra-constitutional action.
Only in North Carolina has the state's constitution granted the legislature the sole responsibility for redistricting, with federal and state law regulating outcomes. The state is legislative redistricting's last stand. ISL theory is a final, even desperate, salvo. A defeat for legislative redistricting here would represent a decisive victory for the coalition of lawyers, judges, and technical experts who wish to take command of the process. Despite their remonstrances, they are driven by the same partisan motives they attribute to lawmakers.
The changes sought by this coalition would not necessarily benefit voters. They would not expand the public's rights and choices. In fact, by characterizing gerrymandering as a transgression with singular perpetrators and victims — a crime by the legislative majority party against the minority party — the new approaches to redistricting reinforce the Democratic-Republican duopoly. In their complex statistical models designed to detect offending plans and districts, academic experts have no room for Libertarians and members of the Green Party, let alone supporters of independent candidates, split-ticket voters, and people who shift back and forth between Democrats and Republicans across the course of a decade. The only metric is that maps should not unfairly benefit one of the two major parties vis-à-vis the other.
The new redistricting process does not provide us with better campaigns, candidates, or legislators either. Greater competitiveness is often a stated aim, but this increases the amount of money spent in elections and thus counters a popular objective of good-government types. By definition, competitiveness also makes outcomes less predictable. Without some confidence that campaigning for office will advance their political careers, quality candidates with significant education, training, and experience who are committed to public service are more likely to take a pass on a race. This reduces the collective talent in the legislative body — a resource many state legislatures, particularly those with poorly paid part-time members and skeletal staff — lack.
A redistricting plan that results in more competitive races can perversely embolden legislative majorities, encouraging them to pursue and enact extreme agendas by inflating the advantage they enjoy in a body. Under these conditions, minimal national or statewide swings in favor of a party can result in huge gains. Such an outcome demonstrates how competitiveness can work at cross purposes with proportionality — another feature of plans reformers endorse. In fact, drawing uncompetitive blue and red districts can be a way of ensuring seats are distributed among the major parties to approximate the amount of support they customarily receive from the general population.
Reducing or eliminating the latitude state legislatures exercise in redistricting will not solve our polarization problem. Partisan gerrymanders are said to drive legislators to the ideological extremes by producing district-median voters who are considerably to the right or left of the state's political center of gravity. Yet these days, districts of all types don't provide much encouragement for the parties to nominate more moderate candidates. The primary — particularly when it is closed to unaffiliated voters and registrants with the opposition party — ensures nominees are approved by ideological activists regardless of the district's partisan makeup. Political scientists who analyze roll-call votes have also found that the U.S. Senate — the American legislative body not subject to redistricting — is as polarized as the House and many state legislatures.
In a previous era, legislative minorities that suffered electoral defeat and then self-corrected demonstrated an important feature of representative democracy's feedback mechanism. Until the 1980s, even when faced by challenging district plans, losing parties recalibrated their strategy and positions on important policies after a period of reflection. Democrats successfully countered Republicans' purported manipulation of redistricting following the 1970 census in Arizona and Colorado by recruiting candidates who appealed to young urbanites and Latinos. It took a while, but Republicans responded to the Democratic gerrymander in New York by building a broad coalition capable of electing to Congress Bill Green from Manhattan and Jack Kemp from the Buffalo area.
The parties of today are too nationalized, too contemptuous of local mores and idiosyncrasies, and too ideologically rigid to interpret electoral repudiation as a clarion call for them to re-tailor their message and candidates for a particular city, state, or region. Giving courts and out-of-state attorneys a say in state redistricting battles only exacerbates these weaknesses.
A Supreme Court ruling in favor of the respondents in the North Carolina case will likely suffocate ISL theory just as it enters adolescence. If this happens, the Court's decision would also mark the death of the American redistricting model in which state legislatures — those grassroots assemblies and true laboratories of democracy — enjoy primacy. Unfortunately, few will mourn this development.